When you hear the word “trademark,” what comes to mind? A slogan? A logo perhaps? Maybe even the NBC chimes you hear during their broadcasts. But would you ever think of the shape of candy bar? Nestle thinks so, but unfortunately for them, European courts might not agree. In 2013, Nestle filed a trademark application for the shape of its Kit Kat bar, the four-fingered rectangle of chocolate, reasoning that, over time, the shape had acquired distinctiveness.
This month, the advocate general of the European Court of Justice stated that such a trademark did not comply with European law. While this decision isn’t binding, it is common for the courts in the EU to follow his opinion, which means that Nestle’s application will likely be rejected. Additionally, Europe has yet to allow a trademark for a shape, most notably seen in their refusal to trademark the shape of Legos.
Receiving trademark protection for specific shapes would have allowed Nestle to stop others from producing candy in similar shapes. This would have been a major intellectual property victory for the company, who for years has been competing against its biggest rival, the European candy giant Cadbury. The Nestle/Cadbury feud began in 2004 when Cadbury attempted to trademark its iconic purple wrapping. Nestle opposed the application and eventually had its approval overturned. Since then, the two companies have been fighting to be the most profitable. Nestle clearly thinks this mark would help, as it would prevent Cadbury from selling a similarly shaped Kvikk Lunsj bar.
If you happen to think that the shape is distinctive, you are not alone. When surveyed, 90% of people who were shown the candy bar without its wrapping identified it correctly as a Kit Kat. However, some argue that the shape of the candy bar is simply not enough, that the label and logo attached are truly the identifying aspects of the source of a product or service. European courts are expected to issue an opinion in the next few months on the matter, so until then, enjoy a Kit Kat or two.